April 13, 2004

To Judge, Poetic License Is Only Kind Artists Need

By ROBERT F. WORTH

Christopher Mastrovincenzo, at left, and Kevin Santos have won a suit in Federal District Court allowing them to sell painted hats on the street without a license.

If Edvard Munch were to appear on the streets of New York City selling T-shirts painted with his celebrated work, "The Scream," would he be arrested for doing it without a license?

Federal judges do not usually indulge such wild thought experiments. But Judge Victor Marrero of Federal District Court in Manhattan has done exactly that, in a 34-page decision that begins with the simple tale of two men who wanted to sell painted hats on the street and quickly becomes a treatise on the meaning and limits of art itself.

In his decision, issued on Friday, Judge Marrero ruled that the hats the two men have been selling - which they paint on the spot with graffiti-style words and forms - are artwork, however nontraditional. They are therefore protected by the First Amendment, he wrote, and not subject to the city's requirement that vendors of merchandise possess a license.

Judge Marrero granted a preliminary injunction barring the city from stopping the men, Christopher Mastrovincenzo and Kevin Santos, who had sued the city after being told repeatedly by police officers that they could not sell the hats without a license.

"Now I can relax," said Mr. Mastrovincenzo, 25, who is known on the street as Mastro. "It's a great thing." Mr. Santos, known as Nac, agreed. "Just because we don't make the hats, it doesn't mean it's not art," he said.

Both men have been doing graffiti since they were teenagers, and have worked on a variety of canvases, including storefronts, commercial signs, sneakers, boots, jeans, bags, and business cards.

Sheryl Neufeld, a lawyer for the city, said in a statement: "Essentially, a hat is a hat no matter how it is decorated. The city is considering its legal options, including whether to appeal." The ruling applies directly only to the two artists, and any possible broader implications are unclear at this point.

From a legal point of view, the decision is significant because it shows how expansive the First Amendment is in protecting artistic expression, said Christopher Dunn, the associate legal director of the New York Civil Liberties Union. In 1996, a federal appeals court also found that the city could not require artists selling their work to get vending licenses. But that ruling was narrowly tailored to traditional artistic forms like painting, sculpture, and photography.

The graffiti-hats case originated last summer, when lawyers at the Urban Justice Center began helping Mr. Mastrovincenzo, who had been arrested for selling his work without a license. Like Mr. Santos, he usually sells the hats on Broadway near Houston Street. (The charges were eventually dropped, but not before 40 of his hats had been seized and sold by the Police Department.) He could not get a street vending license, he said, because there is currently a waiting list so long that some would-be vendors have been waiting for more than a decade.

In January, the Justice Center sued the city on the artists' behalf.

In his ruling, Judge Marreo indicated that in his view, not all artwork was protected by the Constitution. For instance, he cited approvingly a recent state case in which a judge ruled that a set of playing cards bearing photographs of Iraqi military and political figures and their names and titles was not sufficient to exempt the seller from the city's license requirement.

An artistic item, Judge Marreo wrote, "must manifest some communication, that is must express some idea conceived and conveyed from the artist, to merit First Amendment protection." But he went on to say that no "bright line" separates art that is worthy of such protection from art that is not.

That is the taking-off point for an impressively learned discourse on artistic expression in Western and non-Western culture.

"The totem poles and carvings of the Tlingit, Haida, and Tsimshian tribes of British Columbia and southeastern Alaska, the masks of Central and Western African peoples, the burn-marked didgeridoos of Australian aborigines are, in their way, as expressive as any Mark Rothko painting, Andy Warhol print, or Henry Moore sculpture," the judge wrote in his decision.

Then there is Edvard Munch, who, if he had tried to sell a T-shirt or hat version of his paintings, would have to be arrested under the city's too-narrow definition of art, the judge concluded.

Mr. Mastrovincenzo put it a little more simply. "Art is art, no matter what you put it on," he said.